WEBVTT 00:00:00.000 --> 00:00:03.720 Imagine for a second that it's the year 1917. 00:00:04.419 --> 00:00:06.780 The United States has just entered the horrific, 00:00:06.780 --> 00:00:10.480 mechanized fray of World War I. And you, being 00:00:10.480 --> 00:00:13.240 a creative type with an eye for historical drama, 00:00:13.779 --> 00:00:16.600 decide to make a movie. You aren't making a documentary 00:00:16.600 --> 00:00:18.519 about the current conflict in Europe, though. 00:00:18.859 --> 00:00:22.440 You're making a sweeping, patriotic epic about 00:00:22.440 --> 00:00:24.640 the American Revolution. Or, you know, let's 00:00:24.640 --> 00:00:26.800 say you're a political activist instead. Sure. 00:00:27.070 --> 00:00:29.469 You decide to stand on a soap box in a public 00:00:29.469 --> 00:00:32.429 square and hand out a printed pamphlet that criticizes 00:00:32.429 --> 00:00:34.649 the military draft. Which sounds totally normal 00:00:34.649 --> 00:00:37.609 today. Exactly. I mean, in almost any other era 00:00:37.609 --> 00:00:40.189 of American history, you're just exercising the 00:00:40.189 --> 00:00:42.590 basic constitutional rights the country was founded 00:00:42.590 --> 00:00:45.689 upon. But in 1917, you hear a knock at the door. 00:00:45.990 --> 00:00:48.049 You're arrested, dragged into federal court, 00:00:48.289 --> 00:00:50.270 and you find yourself staring down the barrel 00:00:50.270 --> 00:00:53.450 of decades in a federal penitentiary. The really 00:00:53.450 --> 00:00:56.369 jarring part of that scenario is just how quickly 00:00:56.369 --> 00:00:58.969 the foundation of American civil liberties shifted. 00:00:59.539 --> 00:01:02.460 A filmmaker could genuinely face 20 years in 00:01:02.460 --> 00:01:04.599 prison for making a movie about George Washington 00:01:04.599 --> 00:01:07.420 simply because the British happened to be American 00:01:07.420 --> 00:01:10.920 allies in 1917. It's wild. The logic applied 00:01:10.920 --> 00:01:13.819 in the courtroom was basically that making the 00:01:13.819 --> 00:01:17.159 British look bad in 1776 might undermine the 00:01:17.159 --> 00:01:19.019 public's commitment to fighting alongside them 00:01:19.019 --> 00:01:21.959 in the trenches of France. The legal gymnastics 00:01:21.959 --> 00:01:24.340 required to put someone in prison for a historical 00:01:24.340 --> 00:01:27.930 film are just staggering. And that is exactly 00:01:27.930 --> 00:01:30.170 what we are getting into today. Welcome to the 00:01:30.170 --> 00:01:32.329 Deep Dive. Glad to be here. The mission of this 00:01:32.329 --> 00:01:34.849 Deep Dive is to explore how a century -old law 00:01:34.849 --> 00:01:37.329 originally passed to catch traditional spies 00:01:37.329 --> 00:01:40.250 and stop military insubordination during World 00:01:40.250 --> 00:01:43.069 War I, somehow morphed over the decades. It really 00:01:43.069 --> 00:01:45.629 did transform. Yeah, into the government's primary 00:01:45.629 --> 00:01:48.409 tool for prosecuting modern whistleblowers, digital 00:01:48.409 --> 00:01:50.709 journalists, and even former presidents. We've 00:01:50.709 --> 00:01:53.189 got a comprehensive historical and legal breakdown 00:01:53.189 --> 00:01:56.250 today, tracing its evolution from its WWI and 00:01:56.200 --> 00:01:58.799 right up to the present day. It's a fascinating 00:01:58.799 --> 00:02:01.640 timeline. Right. And why should you care? Because 00:02:01.640 --> 00:02:04.140 this single piece of legislation dictates the 00:02:04.140 --> 00:02:07.420 extremely fragile boundary between national security 00:02:07.420 --> 00:02:09.759 and your right to know what your government is 00:02:09.759 --> 00:02:13.280 actually doing. Okay, let's unpack this. Take 00:02:13.280 --> 00:02:16.620 us back to the environment of 1917. What were 00:02:16.620 --> 00:02:19.020 the specific conditions that allowed a law like 00:02:19.020 --> 00:02:22.560 this to take root? Well, the atmosphere in Washington 00:02:22.560 --> 00:02:25.610 and honestly across the entire country. was defined 00:02:25.610 --> 00:02:29.430 by profound, almost feverish paranoia. The Espionage 00:02:29.430 --> 00:02:32.990 Act was passed on June 15th, 1917. That was just 00:02:32.990 --> 00:02:35.789 after the U .S. formally entered the war. President 00:02:35.789 --> 00:02:38.280 Woodrow Wilson pushed heavily for it. And he 00:02:38.280 --> 00:02:40.219 had actually been lobbying Congress for this 00:02:40.219 --> 00:02:42.840 kind of domestic security apparatus as far back 00:02:42.840 --> 00:02:46.180 as December 1915, long before the U .S. severed 00:02:46.180 --> 00:02:48.240 diplomatic relations with Berlin. So the administration 00:02:48.240 --> 00:02:50.199 was already looking for a legal hammer before 00:02:50.199 --> 00:02:52.819 the country even entered the war. Exactly. Wilson 00:02:52.819 --> 00:02:54.879 was deeply concerned about divided loyalties 00:02:54.879 --> 00:02:57.240 among recent immigrants, and he was worried about 00:02:57.240 --> 00:02:59.740 the growing labor and socialist movements that 00:02:59.740 --> 00:03:02.319 vehemently opposed American intervention. Now, 00:03:02.319 --> 00:03:04.680 I know there was an older law, the Defense Secrets 00:03:04.680 --> 00:03:09.120 Act of 1911. How did this new 1917 bill differ 00:03:09.120 --> 00:03:11.680 from what they already had? The 1911 Act was 00:03:11.680 --> 00:03:14.539 pretty narrow. It primarily dealt with the physical 00:03:14.539 --> 00:03:17.879 reality of spying. You know, obtaining or delivering 00:03:17.879 --> 00:03:19.919 national defense information like blueprints 00:03:19.919 --> 00:03:22.060 of a fortress to people who weren't entitled 00:03:22.060 --> 00:03:24.379 to have it. Traditional cloak and dagger stuff. 00:03:24.539 --> 00:03:27.819 Right. But the 1917 Espionage Act was a completely 00:03:27.819 --> 00:03:29.960 different animal. It added much stiffer penalties, 00:03:30.180 --> 00:03:32.099 including the death penalty or up to 30 years 00:03:32.099 --> 00:03:35.770 in prison. But the core of the act, criminalized 00:03:35.770 --> 00:03:38.009 conveying information to interfere with the armed 00:03:38.009 --> 00:03:41.409 forces, promoting enemy success, causing mutiny, 00:03:41.729 --> 00:03:43.990 or obstructing military recruitment. And while 00:03:43.990 --> 00:03:45.770 stopping mutiny seems pretty straightforward 00:03:45.770 --> 00:03:48.770 during a massive mobilization, the administration's 00:03:48.770 --> 00:03:51.550 ambitions went way further. Wilson wasn't just 00:03:51.550 --> 00:03:54.210 looking for saboteurs, right? He wanted to control 00:03:54.210 --> 00:03:57.050 the press. Oh, absolutely. The battle over press 00:03:57.050 --> 00:03:58.750 censorship is one of the most revealing parts 00:03:58.750 --> 00:04:01.370 of this whole history. While Congress was debating 00:04:01.370 --> 00:04:04.169 the bill, Wilson desperately wanted a provision 00:04:04.169 --> 00:04:06.430 for prior restraint. Basically press censorship. 00:04:06.830 --> 00:04:09.389 Yes. Prior restraint means the government can 00:04:09.389 --> 00:04:12.169 review and stop a newspaper from publishing a 00:04:12.169 --> 00:04:15.310 specific story before it's even printed. Wilson 00:04:15.310 --> 00:04:18.149 personally lobbied for this, arguing it was absolutely 00:04:18.149 --> 00:04:21.250 necessary to the public safety. A sitting president 00:04:21.250 --> 00:04:23.649 demanding the legal right to pre -screen the 00:04:23.649 --> 00:04:25.750 news? That just seems so antithetical to the 00:04:25.750 --> 00:04:28.269 First Amendment. How did Congress react? The 00:04:28.269 --> 00:04:30.850 pushback was intense. Critics argued it would 00:04:30.850 --> 00:04:33.689 give dictatorial power to the presidency. After 00:04:33.689 --> 00:04:36.310 weeks of highly contentious debate, Congress 00:04:36.310 --> 00:04:38.949 barely stripped the direct censorship provision 00:04:38.949 --> 00:04:41.569 out of the final bill. They removed it by a single 00:04:41.569 --> 00:04:44.410 vote in the Senate. The final tally was 39 to 00:04:44.410 --> 00:04:48.860 38. Wow. A single vote in 1917 is all that separated 00:04:48.860 --> 00:04:51.620 the American press from legalized executive censorship. 00:04:51.920 --> 00:04:54.100 If one senator flips, the whole trajectory of 00:04:54.100 --> 00:04:56.300 American journalism changes. But even without 00:04:56.300 --> 00:04:58.259 prior restraint, Congress still gave the Wilson 00:04:58.259 --> 00:05:00.300 administration a massive loophole, didn't they? 00:05:00.560 --> 00:05:03.519 They did. They gave it to the postmaster general, 00:05:03.879 --> 00:05:07.319 a man named Albert S. Burleson. Since the administration 00:05:07.319 --> 00:05:09.720 couldn't directly tell newspapers what not to 00:05:09.720 --> 00:05:12.160 print, Congress gave Brilson the authority to 00:05:12.160 --> 00:05:14.819 impound or refuse to mail anything he deemed 00:05:14.819 --> 00:05:18.459 a violation of the act. Which, in 1917, is everything. 00:05:18.920 --> 00:05:21.339 There's no internet, no TV, no commercial radio. 00:05:21.480 --> 00:05:23.540 If you want to distribute anything, you need 00:05:23.540 --> 00:05:25.939 the mail. Exactly. It was a backdoor censorship 00:05:25.939 --> 00:05:29.459 apparatus. Brilson was a staunch partisan loyalist, 00:05:29.540 --> 00:05:32.060 and he set up a nationwide network of postmasters 00:05:32.060 --> 00:05:34.589 to watch the mail. Do we have specific examples 00:05:34.589 --> 00:05:37.589 of what they banned? Oh, plenty. They targeted 00:05:37.589 --> 00:05:40.509 populist and socialist publications. For instance, 00:05:40.850 --> 00:05:43.129 they banned the Jeffersonian, which is a populist 00:05:43.129 --> 00:05:45.589 paper published by Tom Watson. He was a vocal 00:05:45.589 --> 00:05:47.990 critic of the draft. When he sued, a federal 00:05:47.990 --> 00:05:50.470 judge sided with the postmaster general, calling 00:05:50.470 --> 00:05:52.790 the publication poison. I read that the censors 00:05:52.790 --> 00:05:54.730 even flagged a headline in the paper that read, 00:05:54.730 --> 00:05:57.589 civil liberty dead as grounds for suppression. 00:05:57.709 --> 00:06:00.779 Which is incredibly ironic. Right. They suppressed 00:06:00.779 --> 00:06:03.160 the paper for saying civil liberties were dead, 00:06:03.319 --> 00:06:05.399 thereby proving civil liberties were dead. It's 00:06:05.399 --> 00:06:07.720 a perfect closed loop. And they went after the 00:06:07.720 --> 00:06:11.120 masses too, right? Yes. The masses was a Socialist 00:06:11.120 --> 00:06:14.040 Monthly in New York. The government didn't even 00:06:14.040 --> 00:06:16.459 point to a specific military secret they leaked. 00:06:16.860 --> 00:06:19.240 They revoked its manning privileges based on 00:06:19.240 --> 00:06:21.759 its general tenor. Just the vibe of the magazine. 00:06:21.819 --> 00:06:24.319 Pretty much. Judd's line at hand initially ruled 00:06:24.319 --> 00:06:26.800 in favor of the magazine, saying you can't suppress 00:06:26.800 --> 00:06:29.480 speech just because it might indirectly discourage 00:06:29.480 --> 00:06:32.360 someone from enlisting. But the government appealed, 00:06:32.699 --> 00:06:35.500 stayed the injunction, and then starved the publication 00:06:35.500 --> 00:06:38.000 out of existence by keeping it out of the mail 00:06:38.000 --> 00:06:40.439 while the legal battles dragged on. Burleson 00:06:40.439 --> 00:06:42.160 didn't even need a conviction. He just needed 00:06:42.160 --> 00:06:45.319 administrative power. Now, before we move on 00:06:45.319 --> 00:06:48.000 to 1918, there's a really strange quirk of history 00:06:48.000 --> 00:06:51.540 buried in the original 1917 text regarding naval 00:06:51.540 --> 00:06:54.339 vessels. What was that about? Yeah, this is fascinating. 00:06:54.459 --> 00:06:56.819 The act originally forbade transferring naval 00:06:56.819 --> 00:06:59.459 vessels to nations in a conflict where the U 00:06:59.459 --> 00:07:02.740 .S. is neutral. In 1917, that makes sense. They 00:07:02.740 --> 00:07:04.800 didn't want private shipbuilders dragging the 00:07:04.800 --> 00:07:07.199 U .S. into war. Makes total sense. But fast forward 00:07:07.199 --> 00:07:10.300 to the early years of World War II. FDR is in 00:07:10.300 --> 00:07:12.899 the Oval Office. Europe is falling to the Nazis 00:07:12.899 --> 00:07:16.220 and Great Britain desperately needs naval destroyers. 00:07:16.639 --> 00:07:18.839 The U .S. is legally neutral. Oh, I see where 00:07:18.839 --> 00:07:21.980 this is going. FDR wants to execute a destroyer's 00:07:21.980 --> 00:07:24.939 four bases agreement to aid Great Britain. But 00:07:24.939 --> 00:07:27.480 he suddenly finds himself completely stonewalled 00:07:27.480 --> 00:07:30.879 by this obscure clause in the Espionage Act of 00:07:30.879 --> 00:07:34.420 1917. A law designed by the Wilson administration 00:07:34.420 --> 00:07:38.319 ends up binding FDR's hands. decades later. That's 00:07:38.319 --> 00:07:40.959 incredible. But if 1917 laid the groundwork, 00:07:41.379 --> 00:07:43.180 1918 is when things really escalated, right? 00:07:43.259 --> 00:07:45.740 The Red Scare era. Oh, it escalated massively. 00:07:46.180 --> 00:07:47.959 Congress decided the original act didn't go far 00:07:47.959 --> 00:07:50.180 enough, so they passed the Sedition Act of 1918. 00:07:50.490 --> 00:07:53.189 The 1917 law was technically focused on actions 00:07:53.189 --> 00:07:55.829 like interfering with military operations. The 00:07:55.829 --> 00:07:58.430 1918 Sedition Act explicitly criminalized speech. 00:07:58.589 --> 00:08:00.949 What kind of speech? It prohibited any disloyal, 00:08:01.230 --> 00:08:03.649 profane, scurrilous, or abusive language about 00:08:03.649 --> 00:08:05.870 the U .S. government, the flag, or the military 00:08:05.870 --> 00:08:08.310 uniform. Scurrilous. Who decides what's scurrilous? 00:08:08.410 --> 00:08:11.009 That's entirely subjective. That was the point. 00:08:11.670 --> 00:08:14.410 It gave prosecutors a huge net. And the convictions 00:08:14.410 --> 00:08:18.339 from this era are just absurd. Take Eugene V. 00:08:18.480 --> 00:08:20.779 Debs, for example. The Socialist Party candidate 00:08:20.779 --> 00:08:23.300 for president? Yes. He was sentenced to 10 years 00:08:23.300 --> 00:08:26.740 in prison for a speech in Canton, Ohio that supposedly 00:08:26.740 --> 00:08:29.300 obstructed recruiting. He wasn't telling men 00:08:29.300 --> 00:08:32.100 to burn draft cards. He was just giving a broad 00:08:32.100 --> 00:08:34.860 critique of the war. And he famously ran for 00:08:34.860 --> 00:08:37.299 president from his prison cell in 1920, right? 00:08:37.480 --> 00:08:40.039 He did. He got nearly a million votes from the 00:08:40.039 --> 00:08:42.460 Atlanta federal penitentiary. It's just wild 00:08:42.460 --> 00:08:45.159 to think about. And the enforcement wasn't even 00:08:45.159 --> 00:08:46.980 consistent. What happened with Kate Richards 00:08:46.980 --> 00:08:49.279 O 'Hare? She was another prominent anti -war 00:08:49.279 --> 00:08:51.580 socialist. She traveled the country giving the 00:08:51.580 --> 00:08:54.539 exact same stump speech in multiple states. But 00:08:54.539 --> 00:08:56.360 she was only convicted and sentenced to five 00:08:56.360 --> 00:08:59.440 years in North Dakota. Why just North Dakota? 00:08:59.879 --> 00:09:02.139 Because enforcement was entirely up to local 00:09:02.139 --> 00:09:04.940 U .S. attorneys. If a prosecutor in one district 00:09:04.940 --> 00:09:07.320 was zealous or offended by her rhetoric, they'd 00:09:07.320 --> 00:09:09.600 charge her. If another didn't care, she went 00:09:09.600 --> 00:09:12.330 free. It was geographical roulette. Which brings 00:09:12.330 --> 00:09:15.110 us back to our filmmaker from the intro, Robert 00:09:15.110 --> 00:09:18.210 Goldstein. Right. Goldstein produced The Spirit 00:09:18.210 --> 00:09:20.889 of 76, a movie about the American Revolution. 00:09:21.649 --> 00:09:24.830 He was prosecuted and sentenced to 10 years under 00:09:24.830 --> 00:09:27.669 the Espionage Act. Because the movie showed British 00:09:27.669 --> 00:09:30.830 cruelty. Exactly. The government argued that 00:09:30.830 --> 00:09:33.730 depicting British cruelty, even during the revolution, 00:09:34.409 --> 00:09:36.830 might undermine support for America's current 00:09:36.830 --> 00:09:40.240 WWI ally. jailed for historical accuracy because 00:09:40.240 --> 00:09:42.559 of current foreign policy. It wasn't just politics 00:09:42.559 --> 00:09:45.279 and entertainment either. It hit religious groups. 00:09:46.240 --> 00:09:48.179 Joseph Rutherford, the president of the Watchtower 00:09:48.179 --> 00:09:51.059 Society, which we know today as Jehovah's Witnesses, 00:09:51.320 --> 00:09:54.779 was sentenced to 20 years. 20 years for what? 00:09:54.960 --> 00:09:57.600 The society published a book claiming that patriotism 00:09:57.600 --> 00:10:00.440 was a narrowly minded hatred. The government 00:10:00.440 --> 00:10:02.419 argued that defining patriotism that way was 00:10:02.419 --> 00:10:04.600 an attempt to cause insubordination in the military. 00:10:04.899 --> 00:10:06.879 So we have a presidential candidate, a traveling 00:10:06.879 --> 00:10:09.779 socialist, a filmmaker, and a religious leader 00:10:09.779 --> 00:10:12.940 all thrown in prison. Where was the Supreme Court 00:10:12.940 --> 00:10:14.000 in all this? What about the First Amendment? 00:10:14.279 --> 00:10:16.779 Well, this brings us to a huge landmark case 00:10:16.779 --> 00:10:20.679 in 1919. Schenk v. United States. Charles Schenk 00:10:20.679 --> 00:10:23.620 mailed anti -draft pamphlets to drafted men, 00:10:23.860 --> 00:10:26.539 arguing the draft was involuntary servitude under 00:10:26.539 --> 00:10:29.330 the 13th Amendment. He was convicted, and he 00:10:29.330 --> 00:10:31.149 appealed to the Supreme Court. And the court 00:10:31.149 --> 00:10:34.649 upheld it. They did, unanimously. Justice Oliver 00:10:34.649 --> 00:10:37.090 Wendell Holmes wrote the opinion, and he created 00:10:37.090 --> 00:10:39.470 the clear and present danger test. That's where 00:10:39.470 --> 00:10:41.210 the famous theater analogy comes from, right? 00:10:41.330 --> 00:10:44.309 Yes. Holmes famously originated the concept that 00:10:44.309 --> 00:10:46.629 the First Amendment doesn't protect falsely shouting 00:10:46.629 --> 00:10:48.929 fire in a crowded theater and causing a panic. 00:10:49.669 --> 00:10:52.190 He argued that during wartime, Schenck's pamphlets 00:10:52.190 --> 00:10:54.740 were like shouting fire. People still use that 00:10:54.740 --> 00:10:57.659 analogy today to justify banning speech, but 00:10:57.659 --> 00:10:59.559 what's fascinating here is that Justice Holmes 00:10:59.559 --> 00:11:01.759 actually changed his mind almost immediately 00:11:01.759 --> 00:11:04.820 after that, didn't he? It is fascinating. After 00:11:04.820 --> 00:11:07.100 meeting with free speech advocates, including 00:11:07.100 --> 00:11:10.340 Harvard law professor Zachariah Chafee, Holmes 00:11:10.340 --> 00:11:13.429 began doubting his own decision. Later that same 00:11:13.429 --> 00:11:16.889 year, in Abrams v. United States, the court upheld 00:11:16.889 --> 00:11:19.710 the convictions of Russian immigrants who distributed 00:11:19.710 --> 00:11:22.690 leaflets denouncing U .S. intervention in the 00:11:22.690 --> 00:11:24.889 Russian Revolution. But Holmes didn't vote with 00:11:24.889 --> 00:11:27.850 the majority this time. No, he wrote a blistering 00:11:27.850 --> 00:11:30.590 dissent. He argued that the surreptitious publishing 00:11:30.590 --> 00:11:33.289 of a silly leaflet by an unknown man doesn't 00:11:33.289 --> 00:11:36.250 present an immediate danger. He completely pivoted 00:11:36.250 --> 00:11:39.250 away from his own shouting fire analogy to defend 00:11:39.250 --> 00:11:42.179 free expression. That's a massive shift. So how 00:11:42.179 --> 00:11:45.340 did this era end? The Red Scare eventually faded 00:11:45.340 --> 00:11:48.740 and the Sedition Act was repealed in 1921. The 00:11:48.740 --> 00:11:50.940 Espionage Act kind of fell into relative disuse 00:11:50.940 --> 00:11:53.340 after that. Until World War II and the Cold War. 00:11:53.539 --> 00:11:55.840 Right. Because they didn't repeal the CORE 1917 00:11:55.840 --> 00:11:57.759 Act. They just left it on the books. Exactly. 00:11:58.080 --> 00:12:00.419 But surprisingly, prosecutions actually dropped 00:12:00.419 --> 00:12:03.259 during WWII. Why is that? You'd think for the 00:12:03.259 --> 00:12:05.259 global war against the Axis powers, they'd use 00:12:05.259 --> 00:12:07.860 it constantly. Mostly because there was far less 00:12:07.860 --> 00:12:10.419 organized public opposition after Pearl Harbor 00:12:10.419 --> 00:12:15.539 compared to WWI. But WWII does give us one of 00:12:15.539 --> 00:12:18.799 the most incredible press leak stories. The Midway 00:12:18.799 --> 00:12:22.279 leak. Yes. The Chicago Tribune story. Walk us 00:12:22.279 --> 00:12:24.799 through that. So just after the U .S. won the 00:12:24.799 --> 00:12:27.840 Battle of Midway in 1942, Stanley Johnson of 00:12:27.840 --> 00:12:30.360 the Chicago Tribune essentially leaked that the 00:12:30.360 --> 00:12:33.200 U .S. had broken Japanese codes. He published 00:12:33.200 --> 00:12:35.639 a front page story with such accurate details 00:12:35.639 --> 00:12:37.399 about the Japanese fleet that it was obvious 00:12:37.399 --> 00:12:39.620 the codes were broken. And the Japanese saw it. 00:12:39.799 --> 00:12:41.919 They did, and they changed their codes as a result, 00:12:42.240 --> 00:12:44.220 which was a massive blow to U .S. intelligence. 00:12:44.799 --> 00:12:46.899 The government was furious and convened a grand 00:12:46.899 --> 00:12:48.840 jury to indict the publishers. They didn't go 00:12:48.840 --> 00:12:50.759 through with it. They dropped the case. Because 00:12:50.759 --> 00:12:52.779 prosecuting them would require the U .S. Navy 00:12:52.779 --> 00:12:55.679 to stand up in open court and definitively verify 00:12:55.679 --> 00:12:57.679 the highly classified information to a jury. 00:12:57.899 --> 00:13:00.480 He would compound the damage. Attorney General 00:13:00.480 --> 00:13:02.399 Francis Biddle later said the whole thing made 00:13:02.399 --> 00:13:04.919 him feel like a fool. So they hit a wall prosecuting 00:13:04.919 --> 00:13:08.379 the press. But as the Cold War starts, the focus 00:13:08.379 --> 00:13:11.279 shifts away from pamphlets and newspapers and 00:13:11.279 --> 00:13:13.940 moves toward actual traditional spies, right? 00:13:14.080 --> 00:13:16.289 Right. The nuclear age changes everything. The 00:13:16.289 --> 00:13:19.169 focus shifts to Soviet espionage. The most famous 00:13:19.169 --> 00:13:21.610 example is the execution of Julius and Ethel 00:13:21.610 --> 00:13:24.830 Rosenberg in 1953 for giving nuclear secrets 00:13:24.830 --> 00:13:27.570 to the Soviets. But Congress was also tweaking 00:13:27.570 --> 00:13:29.850 the law behind the scenes during this time. Yes. 00:13:29.850 --> 00:13:33.789 And this is a crucial legal shift. In 1950, Congress 00:13:33.789 --> 00:13:36.149 overrode President Truman's veto to pass the 00:13:36.149 --> 00:13:39.070 McCarran Internal Security Act. It added Section 00:13:39.070 --> 00:13:41.870 793E to the espionage act. What did that section 00:13:41.870 --> 00:13:45.179 do? It removed the intent requirement. Before, 00:13:45.659 --> 00:13:47.080 prosecutors had to prove you intended to harm 00:13:47.080 --> 00:13:49.600 the U .S. or aid an enemy. The new section meant 00:13:49.600 --> 00:13:51.679 that the mere retention of classified information 00:13:51.679 --> 00:13:54.500 became a crime. Mere retention. Meaning, regardless 00:13:54.500 --> 00:13:56.480 of whether you meant to do harm, just having 00:13:56.480 --> 00:13:58.320 the documents and not giving them back was a 00:13:58.320 --> 00:14:00.799 felony. Exactly. It's a terrifying implication 00:14:00.799 --> 00:14:03.399 that set a massive trap for future government 00:14:03.399 --> 00:14:06.580 employees. Which brings us to the 1970s and 80s. 00:14:06.779 --> 00:14:09.179 The era of the Pentagon Papers and the year of 00:14:09.179 --> 00:14:11.039 the spy. Let's talk about the Pentagon Papers 00:14:11.039 --> 00:14:14.320 first. Daniel Ellsberg and Anthony Russo were 00:14:14.320 --> 00:14:16.820 charged for publishing a massive classified history 00:14:16.820 --> 00:14:19.259 of the Vietnam War. They leaked it to the press. 00:14:20.000 --> 00:14:21.679 The Nixon administration tried to stop the New 00:14:21.679 --> 00:14:23.879 York Times from printing it, which is prior restraint 00:14:23.879 --> 00:14:27.240 again. Right. But the Supreme Court ruled against 00:14:27.240 --> 00:14:31.059 prior restraint of the press. However, they explicitly 00:14:31.059 --> 00:14:33.600 stated the government could still potentially 00:14:33.600 --> 00:14:36.259 prosecute the publishers under the Espionage 00:14:36.259 --> 00:14:39.179 Act after the fact. The Supreme Court basically 00:14:39.179 --> 00:14:41.580 said, you can print it but we won't protect you 00:14:41.580 --> 00:14:44.279 from going to jail afterward. Ellsberg himself 00:14:44.279 --> 00:14:47.360 was charged. He was, but he was freed due to 00:14:47.360 --> 00:14:50.600 a mistrial because of gross prosecutorial misconduct 00:14:50.600 --> 00:14:52.980 by the government, including the Nixon administration 00:14:52.980 --> 00:14:55.820 burglarizing his psychiatrist's office. Wow. 00:14:56.190 --> 00:14:58.029 But the government really wanted to establish 00:14:58.029 --> 00:15:00.169 a precedent for punishing leaks to the press. 00:15:00.690 --> 00:15:03.610 And they finally got it in 1984 with Samuel Loring 00:15:03.610 --> 00:15:06.690 Morrison. I find this case fascinating. Morrison 00:15:06.690 --> 00:15:09.990 is the crucial precedent. He wasn't a Soviet 00:15:09.990 --> 00:15:13.279 spy. He was a government analyst who sent classified 00:15:13.279 --> 00:15:16.100 satellite photos of a Soviet nuclear carrier 00:15:16.100 --> 00:15:19.340 to Janes, a British defense publisher. And what 00:15:19.340 --> 00:15:22.299 was his defense? He argued the American public 00:15:22.299 --> 00:15:24.340 needed to know what the Soviets were doing so 00:15:24.340 --> 00:15:26.740 they would support increases in defense budgets. 00:15:27.220 --> 00:15:29.899 A patriotic defense. How did the prosecution 00:15:29.899 --> 00:15:32.460 counter that? They pointed out he was being paid 00:15:32.460 --> 00:15:34.639 by Janes, so they argued he wanted money and 00:15:34.639 --> 00:15:37.500 was just disgruntled. But legally, his motive 00:15:37.500 --> 00:15:40.620 didn't matter. What's crucial here is that Morrison 00:15:40.620 --> 00:15:43.120 became the very first American government official 00:15:43.120 --> 00:15:45.659 convicted for giving classified information to 00:15:45.659 --> 00:15:49.100 the press. The very first, after nearly 70 years 00:15:49.100 --> 00:15:52.019 of this law existing. Right. It became a permanent 00:15:52.019 --> 00:15:54.299 test case for the government. They proved they 00:15:54.299 --> 00:15:56.240 could use it as a weapon to threaten the media. 00:15:57.080 --> 00:15:59.820 CIA Director William Casey explicitly used that 00:15:59.820 --> 00:16:02.779 precedent in 1986 to threaten newspapers if they 00:16:02.779 --> 00:16:05.059 published intercepted communications. So the 00:16:05.059 --> 00:16:07.039 Morrison case arms the government for what's 00:16:07.039 --> 00:16:09.220 coming next. We're moving into the 21st century 00:16:09.220 --> 00:16:11.519 pivot. And just a quick note for the listener 00:16:11.519 --> 00:16:14.519 as we get into these modern cases. We are not 00:16:14.519 --> 00:16:17.460 taking a political side or endorsing either the 00:16:17.460 --> 00:16:19.960 leakers or the administration's actions here. 00:16:20.340 --> 00:16:22.440 We are merely reporting the facts from the source 00:16:22.440 --> 00:16:24.980 material regarding these highly charged political 00:16:24.980 --> 00:16:27.100 events. Right. Maintaining strict neutrality 00:16:27.100 --> 00:16:29.740 on the politics here. So tell us about this massive 00:16:29.740 --> 00:16:33.539 shift in the 2000s and 2010s. the Obama and Trump 00:16:33.539 --> 00:16:36.899 administrations. aggressively use the act, not 00:16:36.899 --> 00:16:39.379 against traditional spies, but against leakers 00:16:39.379 --> 00:16:41.659 and whistleblowers communicating with the press. 00:16:42.039 --> 00:16:44.419 It started building up in the late 90s with Wen 00:16:44.419 --> 00:16:48.000 Ho Lee, the Los Alamos scientist. Yes, he made 00:16:48.000 --> 00:16:50.539 backup copies of nuclear codes. The government 00:16:50.539 --> 00:16:53.139 spun this massive espionage narrative, but it 00:16:53.139 --> 00:16:55.940 totally collapsed. He pled guilty to one count 00:16:55.940 --> 00:16:59.000 of mishandling info, and the judge actually apologized 00:16:59.000 --> 00:17:00.980 to him in court for believing the government's 00:17:00.980 --> 00:17:04.339 initial overblown claims. And then in 2010, you 00:17:04.339 --> 00:17:07.799 have Thomas Andrews Drake. Drake was indicted 00:17:07.799 --> 00:17:10.019 for willful retention. He was trying to blow 00:17:10.019 --> 00:17:12.259 the whistle on the NSA's Trailblazer project, 00:17:12.359 --> 00:17:14.819 an expensive domestic surveillance program to 00:17:14.819 --> 00:17:17.539 a Baltimore Sun reporter. And then the scale 00:17:17.539 --> 00:17:20.019 of the leaks just explodes with Chelsea Manning. 00:17:20.240 --> 00:17:22.660 Manning was convicted on six counts of violating 00:17:22.660 --> 00:17:25.440 the act for the massive WikiLeaks disclosure 00:17:25.440 --> 00:17:28.900 of diplomatic cables and military logs. She was 00:17:28.900 --> 00:17:31.900 sentenced to 35 years in a military prison. 35 00:17:31.900 --> 00:17:34.079 years, though President Obama later commuted 00:17:34.079 --> 00:17:37.720 it to seven years. Right. And then in 2013, Edward 00:17:37.720 --> 00:17:40.119 Snowden was charged under the act after exposing 00:17:40.119 --> 00:17:43.279 the NSA's PRISM mass surveillance program. And 00:17:43.279 --> 00:17:45.720 later, reality winner was sentenced to over five 00:17:45.720 --> 00:17:47.940 years. Which was the longest sentence ever at 00:17:47.940 --> 00:17:50.140 the time for media leaks, right? For transmitting 00:17:50.140 --> 00:17:52.039 a document about Russian election interference. 00:17:52.319 --> 00:17:55.619 Exactly. And this roll call of leakers highlights 00:17:55.619 --> 00:17:58.299 the core tension of this modern era. What is 00:17:58.299 --> 00:17:59.980 that tension? What are the two sides arguing? 00:18:00.250 --> 00:18:02.009 Well, President Obama argued that these leaks 00:18:02.009 --> 00:18:04.910 put military personnel at direct risk, compromise 00:18:04.910 --> 00:18:07.390 ongoing missions, and reveal intelligence methods. 00:18:07.950 --> 00:18:10.450 Basically, the system relies on absolute control 00:18:10.450 --> 00:18:13.049 of classified information to protect the country. 00:18:13.369 --> 00:18:15.390 But the defense attorneys see it completely differently. 00:18:15.769 --> 00:18:18.250 Completely. The defense argues their clients 00:18:18.250 --> 00:18:21.009 are whistleblowers, making crucial public interest 00:18:21.009 --> 00:18:24.710 disclosures. They say exposing illegal government 00:18:24.710 --> 00:18:27.269 actions or overreach to the press is protected 00:18:27.269 --> 00:18:29.589 by the First Amendment. But the Espionage Act 00:18:29.589 --> 00:18:32.190 doesn't recognize a difference between a spy 00:18:32.190 --> 00:18:34.450 selling secrets for cash and a whistleblower 00:18:34.450 --> 00:18:36.849 going to the New York Times. No, it doesn't. 00:18:37.029 --> 00:18:39.029 The physical act of transmission is the crime. 00:18:39.230 --> 00:18:41.990 Which brings us to the modern era where things 00:18:41.990 --> 00:18:44.569 get even more complex. And again, to the listener, 00:18:44.809 --> 00:18:46.910 we are maintaining strict political neutrality 00:18:46.910 --> 00:18:48.869 regarding the figures we're about to discuss. 00:18:49.470 --> 00:18:51.849 We are presenting the charges purely as factual 00:18:51.849 --> 00:18:54.430 applications of the Espionage Act based on our 00:18:54.430 --> 00:18:57.130 sources. Understood. Let's look at Julian Assange. 00:18:57.349 --> 00:19:00.089 Charged in 2019 under the Act. Yes. for seeking 00:19:00.089 --> 00:19:03.289 classified info, specifically the 2010 Manning 00:19:03.289 --> 00:19:05.730 leaks, which included the collateral murder video 00:19:05.730 --> 00:19:08.450 showing a U .S. helicopter attack. Assange is 00:19:08.450 --> 00:19:10.609 an Australian citizen. He spent five years in 00:19:10.609 --> 00:19:13.690 a UK maximum security prison fighting extradition 00:19:13.690 --> 00:19:17.170 before pleading guilty to one count in 2024 to 00:19:17.170 --> 00:19:19.690 secure his release. Why is this case viewed as 00:19:19.690 --> 00:19:23.210 such a massive precedent? Because it sets a terrifying 00:19:23.210 --> 00:19:27.000 global precedent. The U .S. used a domestic espionage 00:19:27.000 --> 00:19:29.440 statute to reach into foreign territories and 00:19:29.440 --> 00:19:31.740 charge a non -U .S. journalist operating as a 00:19:31.740 --> 00:19:34.559 publisher. It vastly expands the law's reach. 00:19:34.880 --> 00:19:36.900 And then you have bizarre cases that test the 00:19:36.900 --> 00:19:39.380 law in completely different ways, like Jack Tixera. 00:19:39.599 --> 00:19:43.420 The Tixera case is a modern, surreal twist. He 00:19:43.420 --> 00:19:45.460 was an air national guardsman who didn't leak 00:19:45.460 --> 00:19:48.359 to newspapers or foreign spies. He leaked highly 00:19:48.359 --> 00:19:50.920 classified documents onto a Discord server called 00:19:50.920 --> 00:19:53.720 Thug Shaker Central. To impress gamers. Yes. 00:19:53.930 --> 00:19:56.170 Many of these kids didn't even understand the 00:19:56.170 --> 00:19:58.609 documents. He just wanted social clout online. 00:19:59.470 --> 00:20:01.950 But under the Espionage Act... Unauthorized transmission 00:20:01.950 --> 00:20:04.450 is unauthorized transmission. The venue doesn't 00:20:04.450 --> 00:20:07.029 matter. It's absurd. The full weight of a WWI 00:20:07.029 --> 00:20:09.210 spy law crashing down on a kid showing off on 00:20:09.210 --> 00:20:12.009 a gaming chat server. But the ultimate stress 00:20:12.009 --> 00:20:14.490 test of the act, of course, involved Donald Trump. 00:20:14.710 --> 00:20:16.950 Yes, the ultimate stress test. Former President 00:20:16.950 --> 00:20:20.269 Trump was indicted on 31 counts of willful retention 00:20:20.269 --> 00:20:22.890 of national defense information, which goes right 00:20:22.890 --> 00:20:25.490 back to that 1950 McCarran Act amendment we discussed. 00:20:25.740 --> 00:20:28.579 This was after the FBI raid on Mar -a -Lago in 00:20:28.579 --> 00:20:31.740 2022 regarding nuclear documents and military 00:20:31.740 --> 00:20:35.359 plans. Right. The charges were purely about the 00:20:35.359 --> 00:20:37.839 willful retention of those documents after his 00:20:37.839 --> 00:20:41.400 presidency. But the case was dismissed in 2024 00:20:41.400 --> 00:20:44.799 by Judge Eileen Cannon on constitutional grounds 00:20:44.799 --> 00:20:46.480 regarding the special counsel's appointment. 00:20:47.119 --> 00:20:49.680 And the DOJ dropped its appeal after Trump's 00:20:49.680 --> 00:20:52.609 2024 election win. So what does this all mean 00:20:52.609 --> 00:20:55.210 for the listener? We've seen this law hit socialists, 00:20:55.450 --> 00:20:58.009 filmmakers, naval analysts, NSA whistleblowers, 00:20:58.289 --> 00:21:01.150 publishers, gamers, and a former president. What's 00:21:01.150 --> 00:21:04.730 the fundamental flaw here? The overwhelming criticism 00:21:04.730 --> 00:21:07.450 from legal experts, civil rights attorneys, and 00:21:07.450 --> 00:21:09.910 groups like the PEN American Center all point 00:21:09.910 --> 00:21:12.049 to the Fair Trial Dilemma. Imagine you are charged 00:21:12.049 --> 00:21:13.470 under this act today for blowing the whistle 00:21:13.470 --> 00:21:15.589 on something illegal. Okay, I'm at the defense 00:21:15.589 --> 00:21:17.789 table. This raises an important question. How 00:21:17.789 --> 00:21:19.750 do you defend yourself? How do I? You almost 00:21:19.750 --> 00:21:22.700 can't. The act is over 100 years old. It was 00:21:22.700 --> 00:21:25.140 written 35 years before the word classification 00:21:25.140 --> 00:21:27.519 even existed in government vocabulary. So the 00:21:27.519 --> 00:21:29.779 law wasn't even built for the modern classification 00:21:29.779 --> 00:21:32.509 system. Exactly. And according to lawyers who 00:21:32.509 --> 00:21:35.589 defend these cases, the courtroom rules gag the 00:21:35.589 --> 00:21:39.170 defense. You are completely barred from using 00:21:39.170 --> 00:21:40.809 the word whistleblower in front of the jury. 00:21:41.170 --> 00:21:43.670 Seriously? Yes. You cannot mention the First 00:21:43.670 --> 00:21:45.849 Amendment. You cannot bring up the rampant problem 00:21:45.849 --> 00:21:48.710 of government overclassification where millions 00:21:48.710 --> 00:21:51.490 of harmless documents are stamped secret just 00:21:51.490 --> 00:21:54.769 to avoid hassle. So I can't explain why I leaked 00:21:54.769 --> 00:21:57.789 it? No. There is strictly no public interest 00:21:57.789 --> 00:22:00.210 defense. The jury is never allowed to hear why 00:22:00.210 --> 00:22:02.170 you leaked the document or if it saved lives 00:22:02.170 --> 00:22:04.990 or exposed a crime. They only decide if you had 00:22:04.990 --> 00:22:06.950 the document and if you transmitted it. That 00:22:06.950 --> 00:22:09.549 makes a conviction almost a mathematical certainty. 00:22:09.710 --> 00:22:11.789 And on top of that, it costs up to three million 00:22:11.789 --> 00:22:13.970 dollars to mount a defense. You are financially 00:22:13.970 --> 00:22:16.670 ruined just trying to fight it. It's a completely 00:22:16.670 --> 00:22:19.430 stacked deck. Well, let's recap this astonishing 00:22:19.430 --> 00:22:22.549 journey we've been on today. A 1917 law passed 00:22:22.549 --> 00:22:25.869 to stop WWI sabotage and punish movie producers 00:22:25.869 --> 00:22:28.789 somehow became the mechanism that executed Soviet 00:22:28.789 --> 00:22:31.970 spies, prosecuted Pentagon officials, jailed 00:22:31.970 --> 00:22:34.269 modern digital whistleblowers, and ultimately 00:22:34.269 --> 00:22:37.069 ensnared a former president. It's incredibly 00:22:37.069 --> 00:22:40.309 durable and infinitely malleable. And we rely 00:22:40.309 --> 00:22:41.930 on the press to know what our government does 00:22:41.930 --> 00:22:44.240 in the dark. But the government relies on the 00:22:44.240 --> 00:22:46.880 Espionage Act to keep the lights off. That tension 00:22:46.880 --> 00:22:49.599 isn't going away. No, it's not. Which leaves 00:22:49.599 --> 00:22:51.700 us with a final provocative thought for you to 00:22:51.700 --> 00:22:55.140 mull over. We live in a digital age where every 00:22:55.140 --> 00:22:57.539 citizen with a smartphone is a potential publisher 00:22:57.539 --> 00:23:00.680 and the government automatically generates millions 00:23:00.680 --> 00:23:03.940 of secret documents a day by default. So does 00:23:03.940 --> 00:23:06.519 a blunt instrument law meant for trench warfare 00:23:06.519 --> 00:23:09.839 actually protect our democracy or does it slowly 00:23:09.839 --> 00:23:12.700 suffocate the very transparency a democracy requires 00:23:12.700 --> 00:23:14.839 to survive? It's a heavy question. Definitely 00:23:14.839 --> 00:23:16.500 something to think about. Thanks for joining 00:23:16.500 --> 00:23:18.279 us on this deep dive. We will catch you next 00:23:18.279 --> 00:23:18.519 time.